Commission reforms antitrust procedures and expands role of Hearing Officer

Brussels, 17 October 2011 - The European Commission has adopted a package of measures aimed at increasing interaction with parties in antitrust proceedings and strengthening the mechanisms for safeguarding parties' procedural rights. These measures will increase the transparency and fairness of competition proceedings. They give parties a clear picture of what to expect at different stages of an antitrust investigation and increase their ability to interact with the Commission services. If parties have a dispute about their procedural rights they can refer the matter to the competition hearing officer, who will have an enhanced role throughout the entirety of antitrust proceedings.

Commission Vice-President in charge of competition policy Joaquín Almunia commented: "The procedural package demonstrates that we are willing to listen to stakeholders, learn from experience and make improvements, while maintaining efficient procedures. I think that all parties in competition proceedings will benefit from real improvements in practice".

The best practices notice introduces a number of novelties compared with an earlier draft presented in 2010, developed following public consultation and practical experience, such as:

Informing parties in the Statement of Objections of the main relevant parameters for the possible imposition of fines.

Extending state of play meetings to cartel cases and complainants in specific circumstances.

Enhanced access to "key submissions" of complainants or third parties, such as economic studies, prior to the Statement of Objections.

Publishing rejection of complaints, either in full or as a summary.

The package also encompasses a revised Hearing Officer's mandate which strengthens and expands the role of the hearing officer. The hearing officer is independent from the case handling services and plays a crucial role as guardian of procedural rights in competition procedures. The new mandate notably enables the hearing officer to intervene during the investigatory phase of antitrust and certain merger proceedings.

The package also includes further developments to the best practices on submission of economic evidence.

Additional information

Notice on Best Practices in antitrust proceedings

The Notice contains guidance on best practice aimed at ensuring that parties are better informed of the state of play throughout the course of proceedings. It also provides for greater interaction between Commission services and relevant parties from an early stage as follows. The following practices were put in place as from 2010 :

Earlier opening of formal proceedings.

State of play meetings at key points of the proceedings.

Disclosing key submissions already in the investigative phase.

Publicly announcing the opening and closure of a procedure and the sending of a Statement of Objections.

Guidance on how the commitment procedure is used in practice.

After a public consultation that was launched in January 2010, and having gained experience with the draft best practices, additional key improvements were introduced:

Informing parties in the Statement of Objections of the main relevant parameters for the possible imposition of fines.

Extending state of play meetings to cartel cases and complainants in specific circumstances.

Enhanced access to "key submissions" of complainants or third parties, such as economic studies, prior to the Statement of Objections.

Publishing rejection of complaints, either in full or as a summary.

Revision of the Hearing Officer's mandate

The revised mandate strengthens the role of the Hearing Officer as the guardian of procedural rights.

Crucially, the Hearing Officer has new functions in the investigation phase:

Resolving issues regarding the confidentiality of communications between companies and their external lawyers (legal professional privilege or LPP).

Intervening when a company considers that it has not been informed of its procedural status.

Parties will also be able to refer the matter to the Hearing Officer if they feel that they should not be compelled to reply to questions that might force them to admit to an infringement.

Intervening in disputes about the extension of deadlines to reply to information requests under Article 18(3) of the Antitrust Regulation 1/2003.

Other key developments include:

Strengthened role in the preparation and conduct of the oral hearing.

Reports to cover the effective exercise of procedural rights throughout proceedings, including the investigation phase.

The new mandate expressly empowers parties to refer matters to the Hearing Officer in antitrust commitment procedures.

Best Practices on the submission of economic evidence

Due to the increasing importance of economics in complex cases, the Commission often requests substantial economic data and parties often submit arguments based on complex economic theories or provide empirical analysis.

In order to streamline the submission and assessment of such evidence, the Best Practices outline the criteria economic and econometric analysis should fulfil and explains how they will be dealt with.